Court upholds cell phone monitoring across state lines

Maryland's highest court has upheld a law allowing police to listen in on cell phone calls that suspects make outside the state, a tool that authorities say is key to fighting the drug trade.

The 5-2 Court of Appeals ruling is a victory for law enforcement, said Brian Kleinbord, chief of criminal appeals division for the Maryland Attorney General's Office. "It means that drug dealers can't evade a wiretap by driving their cars across the state line."

But dissenters argued that multi-state wiretaps are the latest example of police using advances in technology to chip away at privacy rights.

Randy E. McDonald, a Washington-based lawyer who argued the case for a man convicted on drug charges, said police have gone too far and he is considering an appeal to theU.S. Supreme Court.

"I think that now the Maryland police can have unfettered access to your phone calls merely by alleging that you may commit a crime in Maryland," McDonald said. "I think people should have some concern that their privacy is invaded."

McDonald represented Tyrone Davis, who appealed after he had been convicted on marijuana charges and sentenced to five years in prison. The Court of Appeals upheld the conviction.

Montgomery County police were eavesdropping on a cell phone call by Davis, a Silver Spring resident, in 2006 as he neared Maryland on a trip from Miami. About an hour later, two officers confronted Davis when he arrived home. They searched a suitcase in Davis' trunk, and found more than nine pounds of marijuana.

Davis challenged the state Wiretapping and Electronic Surveillance Act, which was updated in 1991 to account for the development of cell phone technology, according to the 22-page opinion issued Wednesday.

Davis' lawyers argued that the law limits the monitoring to places within the state and requires police to shut down the wiretap when a suspect crosses the state line.

But Judge Glenn T. Harrell Jr. wrote in the majority opinion that such a limitation "would present an enormous logistical and technological challenge to law enforcement operators and, in cases where the subject of an investigation crosses back and forth over state or other boundary lines, the task may be impossible."

Harrell also cited testimony from the General Assembly sponsor of the 1991 amendment on the wiretap law to prove legislative intent. Amid a drug epidemic, "traffickers were exploiting the jurisdictional restrictions of the current wire tap laws which tied 'the hands of the police trying to apprehend drug traffickers and put them in prison,' " he wrote.

In the dissenting opinion, Chief Judge Robert M. Bell said the "communication device" that is tapped must be physically in the state; otherwise, "Its reach could be anywhere in the United States and, indeed, the world."

But Kleinbord said the key to the case is the location where police listen in on the cell phone calls, The ruling is especially important in a relatively small state like Maryland that borders Washington, Virginia, West Virginia, Pennsylvania and Delaware, he said.